Archive for January, 2011

Last time, after describing hearsay evidence, I told you that today’s post would tell the story of how inadmissible hearsay evidence convicted a United States Senator and ended his career.

The Senator was Ted Stevens of Alaska. The six-term Republican senator was a Washington D.C. powerhouse when he was indicted in 2008 for failing to report gifts as required by federal law. Stevens accepted more than $250,000 of work on his Alaska home from a friend and did not pay for the work. Even though the friend, Bill Allen, had received millions of dollars of federal government work while Stevens was chairman of the Senate Appropriations Committee, Stevens was not accused of accepting the work as a bribe. He was charged merely with failing to report the work on his Alaskan house as a gift, a less serious crime, but a crime nonetheless.

The case turned on a single piece of evidence, a note that Senator Stevens had written his friend Bill Allen. The note read,

Dear Bill,

Thanks for all the work on the chalet. You owe me a bill – remember Torricelli, my friend. Friendship is one thing – compliance with these ethics rules entirely different. I asked Bob P to talk to you about this so don’t get P.O.’ed at him – it just has to be done right.

(Torricelli was the N.J. Senator forced from office for accepting gifts. “Bob P” was a mutual friend of Stevens and Allen whose full name is Bob Persons.)

Stevens' Alaskan Home (Photo Donated to Public Domain by "Kandorwriter")

Stevens’ lawyer – more about him later – wanted that letter in evidence because it tends to prove that Stevens did not intend to commit the crime, he just forgot that Allen never sent him a bill. (I know. It seems hard to forget that you’ve had a quarter of a million dollars of work done on your house and that you haven’t paid for it, but we’re not United States Senators.) So Stevens’ lawyer starts out wanting to get that letter into evidence. (For those of you who are thinking: “Wait a minute. Isn’t that letter itself hearsay? Kudos. But that is not the piece of evidence we’re concerned with right now. The letter was admitted into evidence by the Government, so Stevens’ lawyer was spared the necessity of arguing to the contrary.)

And now we come to the interesting part. Another piece of hearsay and one that could destroy the usefulness of the letter Stevens wrote requesting a bill for the work. The Government called Bill Allen to testify. Remember that Stevens’ letter said that Bill Persons was going to talk to Allen about the bill. Here is the testimony from Allen in response to questions asked him by the Government’s lawyer:

Q: Did you send Senator Stevens a bill or an invoice after you received the note from him?

A: No.

Q: Mr. Allen, do you remember having a conversation with Mr. Persons after you got the note from Senator Stevens?

A: Yes.

Q: What did Mr. Persons tell you?

A: He said oh, Bill, don’t worry about getting a bill. He said, Ted is just covering his ass.

Boom! Lightning strikes Senator Stevens. The letter that was to save him now looks like part of an illegal scheme.

We’ll skip, for the moment, what Stevens’ lawyer was doing during that exchange and examine the answer to see if it is hearsay. Whose statement is it? Mr. Persons. Is Mr. Persons on the witness stand? No, it’s Bill Allen. Was Persons’ statement made outside the courtroom? Yes. What does the statement say? It says that Senator Stevens doesn’t really expect to pay for the work; that he knows it’s a gift. What is the statement offered to prove? That Stevens expects no bill. Hearsay? Yes! It is an out-of-court statement offered to prove exactly what it says.

The jury convicted Senator Stevens and he lost his re-election campaign shortly after.

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Stevens’ conviction was not the end of the story. We’ll return to that next time and we’ll wonder why Stevens’ lawyer didn’t erupt from his chair objecting to the hearsay. If you can’t wait and have a New Yorker subscription you can read about the aftermath of the trial in Jeffrey Toobin’s article in the New Yorker. (Toobin tells you about the aftermath, not about Stevens’ lawyer’s inexplicable failure to object. For that discussion, you’ll have to wait for me to stop scratching my head and start typing.)

The hallmark of the English-American Common Law system of trials is cross-examination. Once called the greatest engine for the discovery of the truth ever invented, a trial without it is unimaginable in our justice system.

But you can’t cross-examine someone who is not at the trial. Think about it: A trial is a re-creation of something that happened outside the courtroom in time past. Witnesses and documents are brought to the courtroom to re-create the event that gave rise to the trial. Evidence that can’t be cross-examined has no place in that re-creation.

That is why there is a rule against “hearsay evidence.”

When you hear a lawyer say, “I object, calls for hearsay” that lawyer is using the word “hearsay” as a technical term of art. For judges and lawyers “hearsay” means any statement made outside the courtroom offered to prove what it says. That deceptively simple definition takes law students about a semester to grasp and hardly any Hollywood screen writer understands it. But that is nothing. I’ve appeared in front of trial judges who don’t fully understand it either.

Let’s start with an example. We’ll pretend that you were on your way home from work yesterday, driving your car west-bound through an intersection controlled by a traffic light. The passenger side of your car is hit in that intersection by a south-bound car. There are only three witnesses to the wreck; you, the other driver, and a pedestrian waiting to cross the street. You are positive you had a green light and the other driver says he had a green light. Obviously one of you is either mistaken or lying and you are positive it is the other driver. You see the bystander and run over and ask her what she saw and she says to you, “That guy ran a red light!”

As a result of the crash you have a cervical strain which requires you to incur medical bills and wear one of those uncomfortable neck collars for three months. And have your car repaired. The other driver and his insurance company refuse to pay you because they think you ran the red light. The only thing you can do to recover and get a measure of justice is to sue, which you reluctantly do.

A year or so later your case is finally called to trial. A jury of people who don’t know you or the other driver is selected to hear the evidence. Because you are in the courtroom and subject to cross-examination, you will be allowed to testify that you had the green light. The other driver is also in court and testifies that he had the green light and that you ran the red light.

So now the jury has one witness – you – saying you had a green light and one witness – the other driver – saying that you ran a red light. If they believe you, he’ll have to pay you damages. But if they believe him, he won’t have to pay you a nickel. How are they supposed to pick who is telling the truth, especially because both of you have something to gain by your testimony?

But there was a witness with no ax to grind and she told you that the other guy ran a red light. Her testimony will tilt the scales decisively for you.

But there’s a problem. She left the scene right after she talked to you and no one knows where to find her. She’s not in the courtroom and the only way to get her statement to you into evidence is for you to testify about what she said, but she cannot be cross-examined.

Here is how it would unfold in the courtroom:

Your Lawyer: Were there any other witnesses to the wreck?

You: Yes. There was a woman standing on the curb.”

Your Lawyer: Did you talk to her?

You: Yes, I did.

Your Lawyer: What did she say to you?

Opposing Lawyer: I object, Your Honor, calls for hearsay.

Judge: Sustained.

The result? You are not allowed to testify about what she told you and the jury must decide the case without knowing what she saw. Why? Because her statement to you, “He ran the red light!” was made outside the courtroom and is offered by you to prove exactly what it says, that he ran the red light.

Clarence Darrow at Work in the Scopes Trial

Sometimes, of course, a lawyer makes a mistake and fails to object to hearsay evidence, but no one would try to win a case hoping for a lawyer to sit on his hands and not object to a question that calls for hearsay evidence. And sometimes, a judge will make a mistake. But no trial lawyer would go to trial merely on the off-chance that a judge might miss the call.

But it does happen occasionally. We’ll be back next time to show you a piece of hearsay evidence that destroyed the life-long successful political career of a United States Senator.

I use a football analogy in order that we may pause and consider that college football had thirty-five (35) post-season bowl games this year. Once there were only five, four of which were played on New Year’s Day. Now the games last a month or more.

Thirty-five bowl games may seem like a lot, but it actually shows a lack of imagination on the part of college football. They could almost double the number if they had “Play-Off Bowls.” For instance, the “Alamo Bowl” could play the “Independence Bowl” with the winner of that game moving on to meet the winner of the “Military Bowl”/ “Armed Forces Bowl” matchup. The “Texas Bowl” could invade the “New Mexico Bowl”, then move on to meet the “Pinstripe Bowl”. The “Humanitarian Bowl” would take on the “Fight Hunger Bowl” with the winner advancing to the “Chick-Fil-A Bowl”/ “Little Caesar’s Bowl” contest. And so on, ad infinitum. College football could last until mid-July.

End pause.

The Ninth Circuit, as I said, punted the gay marriage case to the California Supreme Court and the ironies abound. The reason assigned by the Ninth Circuit for the punt was uncertainty about whether the people supporting Proposition 8 – outlawing same-sex marriage in California – have “standing” to even be in the lawsuit. “Standing” is a legal doctrine beloved of Republicans and conservative judges because it limits, sometimes drastically, who is allowed to participate in a lawsuit.

The Ninth Circuit Courthouse in 1905

The Ninth Circuit, carefully applying the newer, more restrictive rules announced by the Rehnquist and Roberts Supreme Courts, couldn’t be sure that the anti-gay marriage people in the lawsuit had “standing” to argue in favor of the Proposition outlawing gay marriage. That question, the court decided, has to be sent to the California Supreme Court because neither the governor nor the attorney general of that state are contesting the illegality of Proposition 8. The proposition is part of California law; someone from the state government ought to be defending it, but no one is. Both the governor and the attorney-general punted, leaving only the anti-gay private citizens to defend the hapless proposition.

In other words, the conservatives in this case may not be able to proceed because conservatives in Congress and on the Supreme Court have so strictly limited access to the federal courts. If that’s the case (pun intended), then there is no one who can appeal the trial court’s ruling that Proposition 8 is unconstitutional; gay marriage would be legal in California; and the conservatives on the U.S. Supreme Court would not get to decide the issue. There would be no “Gay Bowl” v. “Anti-Gay Bowl”.